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2005 Federal Sentencing Guidelines

Chapter 8 - PART C - FINES

§8C2.2. Preliminary Determination
of Inability to Pay Fine

(a) Where it is readily ascertainable that the organization cannot and is
not likely to become able (even on an installment schedule) to pay restitution
required under §8B1.1 (Restitution - Organizations), a determination of
the guideline fine range is unnecessary because, pursuant to §8C3.3(a),
no fine would be imposed.

(b) Where it is readily ascertainable through a preliminary determination
of the minimum of the guideline fine range (see §§8C2.3
through 8C2.7) that the organization cannot and is not likely to become able
(even on an installment schedule) to pay such minimum guideline fine, a further
determination of the guideline fine range is unnecessary. Instead, the court
may use the preliminary determination and impose the fine that would result
from the application of §8C3.3 (Reduction of Fine Based on Inability to
Pay).

Commentary

Application Notes:

1. In a case of a determination under subsection (a), a statement that "the
guideline fine range was not determined because it is readily ascertainable
that the defendant cannot and is not likely to become able to pay restitution" is
recommended.

2. In a case of a determination under subsection (b), a statement that "no
precise determination of the guideline fine range is required because it
is readily ascertainable that the defendant cannot and is not likely to become
able to pay the minimum of the guideline fine range" is recommended.

Background: Many organizational
defendants lack the ability to pay restitution. In addition, many organizational
defendants who may be able to pay restitution lack the ability to pay the
minimum fine called for by §8C2.7(a). In such cases, a complete determination
of the guideline fine range may be a needless exercise. This section provides
for an abbreviated determination of the guideline fine range that can be
applied where it is readily ascertainable that the fine within the guideline
fine range determined under §8C2.7 (Guideline Fine Range - Organizations)
would be reduced under §8C3.3 (Reduction of Fine Based on Inability
to Pay).